dissenting.
The majority opinion stands for this proposition: Under ORS 138.071(2), when a trial court enters an order granting a motion for a new trial after the date the motion has been deemed denied under ORS 136.535(3), a party appealing from the order must file a notice of appeal within 30 days of the date the motion was deemed denied. In effect, the majority holds that the time for filing a notice of appeal began to run in this case before the appealable event itself occurred. We must strive to avoid such an illogical result unless the relevant statutes admit of no other reasonable interpretation. The majority suggests that there is no such interpretation of ORS 138.071; I disagree.
The state has a right to appeal from an order granting a new trial. ORS 138.060(8).1 In rejecting the state’s right to appeal in this case, the majority is led astray, perhaps understandably, because ORS 138.071(2) purports to establish the time period in which a notice of appeal may be filed without identifying the decision being appealed.
ORS 138.071(2) provides:
“If a motion for new trial or motion in arrest of judgment is served and filed the notice of appeal shall be served and filed within 30 days from the earlier of the following dates:
*239“(a) The date of entry of the order disposing of the motion; or
“(b) The date on which the motion is deemed denied, as provided in ORS 136.535.”
Subsection (2) is structured unusually in that it begins with a predicate, “[i]f a motion for new trial or motion in arrest of judgment is served and filed,” and ends with provisions about when the notice of appeal must be filed, without ever identifying the decision being appealed. This is in marked contrast to subsection (1) of the same statute, which provides that “[e]xcept as provided in subsections (2), (3) and (4) of this section, the notice of appeal shall be served and filed not later than 30 days after the judgment or order appealed from was entered in the register.” Subsection (1) makes clear that entry of the decision being appealed in the court register is the event that triggers the running of the 30-day appeal period. Unfortunately, ORS 138.071(2) is silent as to the decision being appealed, thereby creating confusion about the event or events that trigger the commencement of the appeal period under that subsection.
To determine the event or events that trigger the appeal period in subsection (2), we must consider ORS 138.040 and ORS 138.060, because those statutes define the kinds of decisions that a defendant and the state, respectively, may appeal from in a criminal case. Under ORS 138.040, a defendant may seek review from an order denying a motion for a new trial based on newly discovered evidence or juror misconduct, but the defendant may do so only by appealing from the judgment. State v. Sullens, 314 Or 436, 443, 839 P2d 708 (1992). By contrast, under ORS 138.060(5), the state may appeal from the judgment under some circumstances, but, more important here, under ORS 138.060(8) the state may appeal directly from the trial court’s disposition of a motion for new trial if it is granted.
Because the decision that can be appealed following the filing of a motion for a new trial depends on which party wants to appeal, ORS 138.071(2) cannot be read without reference to who is appealing what decision. When the defendant appeals, the event that triggers the commencement of the appeal period is the denial of the defendant’s motion for *240new trial — either by order entered in the register or by operation of law as provided in ORS 136.535,2 and both paragraphs (a) and (b) of ORS 183.071(2) must be consulted to determine when the appeal period is triggered. However, implicit in subsection (2) is that paragraph (b) is not applicable to an order entered in the register purporting to grant a motion for new trial, because, by definition, an order granting a motion for new trial cannot be deemed to deny a motion for a new trial. Only paragraph (a) logically applies to an order granting a motion for a new trial.
When the state appeals from an order granting a new trial, ORS 138.071(2) must be read together with ORS 138.060(8). See Fairbanks v. Bureau of Labor and Industries, 323 Or 88, 94, 913 P2d 703 (1996) (holding that courts must construe related statutes together to give appropriate effect to each and thus carry out the full intent of the legislature). Reading those statutes together leads to the conclusion that the state may appeal from an order granting a new trial within 30 days of the date of entry of the order granting the motion for new trial, without reference to when the defendant may appeal from the judgment following the denial of a motion for new trial. ORS 138.071(2)(a) prescribes the period within which the state may file its notice of appeal. In this case, the state filed its notice of appeal within the prescribed period.
The majority believes that my interpretation eliminates the phrase “from the earlier of’ from the preface of ORS 138.071(2). Not so. That comes into play only if both paragraphs (a) and (b) are applicable. The phrase, like paragraph (b), simply is not applicable when the state appeals from an order granting a motion for new trial. It is no surprise that sometimes less than all provisions of a statute apply to a given circumstance. When that occurs, a court so construing the statute does not violate any canon of statutory construction, whether legislative or judge-made. That is the situation here.
*241The majority suggests that the state may have an adequate remedy to challenge the improper grant of defendant’s motion for new trial, namely, a petition for a writ of mandamus addressed to the Supreme Court under Article VII (Amended), section 2, of the Oregon Constitution, and ORS 34.120(2).3 However, Article VII (Amended), section 2, provides that the Supreme Court’s original mandamus jurisdiction is discretionary. The Supreme Court would have no obligation to issue a writ of mandamus in this case, even if the court believed that the trial court erroneously had granted the motion for new trial. I take judicial notice of the fact that, during the year 2000, of the 70 petitions for writs of mandamus filed in the Supreme Court, not a single one was allowed. The court’s restraint may reflect its belief that mandamus is truly an extraordinary remedy that is not intended merely to correct lower court errors. There is no reason to presume that the Supreme Court would grant mandamus relief to correct an error such as the one committed by the trial court here.
ORS 138.060(8) confers on the state a right to appeal from an order granting a new trial. ORS 138.071(2)(a) requires the state to file its notice of appeal within 30 days of the date of entry of the order. The state did so in this case. Therefore, the state’s petition for reconsideration should be granted, the court’s prior opinion should be vacated, and the state’s appeal should be reinstated.4
I respectfully dissent.
ORS 138.060 provides, in part:
“The state may take an appeal from the circuit court to the Court of Appeals from:
“(8) An order granting a new trial[.]”
I agree with the majority that the trial judge’s letter opinion stating that he would grant defendant’s motion for new trial did not “determine” the motion within the meaning of ORS 136.535(3), because such a determination must be in the form of an order entered in the trial court register.
Article VII (Amended), section 2, of the Oregon Constitution, provides:
“The courts, jurisdiction, and judicial system of Oregon, except so far as expressly changed by this amendment, shall remain as at present constituted until otherwise provided by law. But the supreme court may, in its own discretion, take original jurisdiction in mandamus, quo warranto and habeas corpus proceedings.”
If the court were to dispose of the state’s petition in that manner, defendant’s motion for reconsideration would become moot and should be denied on that ground.